Hearsay evidence refers to a statement made by an individual out-of-court that a litigant seeks to have repeated in court for the truth of its contents (R. v. Bradshaw, 2017 SCC 35 at para. 20).

Hearsay evidence is presumptively inadmissible at a criminal trial in Canada (R. v. Khalewon, 2006 SCC 57 at para. 59). 

In order to understand why a judge or a jury is not permitted, as a general rule, to consider hearsay evidence in determining whether the state has proven an allegation beyond a reasonable doubt, it is helpful to consider the following comments from the Supreme Court of Canada:

…it is the difficulty of testing hearsay evidence that underlies the exclusionary rule…

...Our adversary system puts a premium on the calling of witnesses, who testify under oath or solemn affirmation, whose demeanour can be observed by the trier of fact, and whose testimony can be tested by cross-examination. We regard this process as the optimal way of testing testimonial evidence. Because hearsay evidence comes in a different form, it raises particular concerns. The general exclusionary rule is a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. The fear is that untested hearsay evidence may be afforded more weight than it deserves. ...

                                         R. v. Khalewon, 2006 SCC 57, beginning at para. 34

 

The truth-seeking process of a trial is predicated on the presentation of evidence in court. Litigants make their case by presenting real evidence and viva voce testimony to the trier of fact. In court, witnesses give testimony under oath or solemn affirmation. The trier of fact directly observes the real evidence and hears the testimony, so there is no concern that the evidence was recorded inaccurately. This process gives the trier of fact robust tools for testing the truthfulness of evidence and assessing its value. To determine whether a witness is telling the truth, the trier of fact can observe the witness's demeanor and assess whether the testimony withstands testing through cross-examination…

…Because hearsay is declared outside of court, it is often difficult for the trier of fact to assess whether it is trustworthy. Generally, hearsay is not taken under oath, the trier of fact cannot observe the declarant's demeanor as she makes the statement, and hearsay is not tested through cross-examination (R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 764). Allowing a trier of fact to consider hearsay can therefore compromise trial fairness and the trial's truth-seeking process. The hearsay statement may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant's perception, memory, narration, or sincerity…

                        R. v. Bradshaw, 2017 SCC 35, beginning at para. 19

 

...The trial judge's function is to guard against the admission of hearsay evidence...  In the context of a criminal case, the accused's inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. ...

R. v. Khalewon, 2006 SCC 57, at para. 3

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